Category Archives: First Amendment

A federal judge on Tuesday ruled that some of the claims in a literary advocacy group's lawsuit against President TrumpDonald John TrumpThe pandemic is bad, we need the capability to measure just how bad Florida governor wants federal disaster area declaration Amash calls stimulus package 'a raw deal' for 'those who need the most help' MORE overhis threats to retaliate against critical media coverage can proceed.

U.S. District Judge Lorna Schofield wrote in a 24-pageopinionthat PEN America had a "constitutional standing" to pursue claims for declaratory relief against Trump's practice of "selectively barring access" to the White House press corps, including by "revoking or threatening to revoke press credentials due to hostility to the reporters speech."

Schofield also ruled that the case could proceed on allegations that Trump revoked or threatened to revoke security clearances for government officials he dislikes.

The court granted Trump's motion to dismiss claims thathe initiated government actions against certain media companies, threatened to revoke broadcast licenses and interfered in White House press access.

Schofield noted that PEN America's claims against Trump had merit, given that the White House has a history of barring press access and that it revoked CNN White House correspondent Jim AcostaJames (Jim) AcostaSean Spicer takes seat at White House press briefing CNN's Acosta: Trump referring to coronavirus as 'foreign virus' in Oval Office address 'smacked of xenophobia' Chris Wallace 'horrified' by CNN's Acosta's conduct: 'It's not our job to one-up presidents' MORE'scredentials inNovember 2018. Acosta's press pass was later reinstated, though the development caused former White House press secretary Sarah HuckabeeSarah Elizabeth SandersFox News's Hume rips Alexander over 'gotcha' question to Trump NBC's Alexander: I gave Trump 'a softball' question as opportunity to 'reassure' Americans Coronavirus puts new use to White House press briefing room MORE Sanders to release new guidelines for reporters.

The press secretary indeed e-mailed the entire press corps to inform them of new rules of conduct and to warn of further consequences, citing the incident involving Mr. Acosta, Schofield noted. These facts plausibly allege that a motivation for defendants actions is controlling and punishing speech he dislikes.

Acosta's credentials were temporarily stripped after a contentious exchangewith the president at a press conference. A federal judgegranted CNN's request to restore the pass, ruling that Acosta and his employer were likely to succeed in arguments that theirFifth Amendment rights to due process were violated by the White House.

PEN America filed a lawsuit in 2018 against Trump in an attempt to gain an order declaring that Trump's threats violated the First Amendment. The group also sought an injunction to block Trump fromtaking actions against journalists he doesn't like.

Schofield wrote on Tuesday that "issuing an injunction to the president would impede his discretionary authority in these realms, and more generally, risk improper judicial encroachment on the executive branch."

The case will now move into the discovery phase, and PEN America will be allowed to obtain documents from the government to help substantiate its claims, the group said.

PEN America is profoundly grateful for the courts timely decision," the group's president, Jennifer Egan, said in a statement. "Though we filed our lawsuit more than a year ago, the Trump administrations punitive stance toward the press has continued unabated, with corrosive results for truth, fact, our democracy, andmost recentlypublic health."

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Judge rules lawsuit alleging Trump threatened free press can move forward | TheHill - The Hill

John Elwood briefly reviews Mondays relists.

Wow. Its been a long week. As if the coronavirus werent enough all on its own, theres fresh news of other disasters. By which I mean parents everywhere realizing their wish they could spend more time with their families might actually be coming true.

My forecast last week that well be seeing opinions in some of th[e relisted cases] soon turned out to be correct. The Supreme Court summarily reversed in Davis v. United States, 19-5421, invalidating the unique rule of the U.S. Court of Appeals for the 5th Circuit holding that factual error is categorically immune from plain error review. It took the court just two paragraphs of analysis to dispatch it. The court then GVRd (granted, vacated and remanded) in two cases raising the same issue, Bazan v. United States, 19-6113, and Bazan v. United States, 19-6431. You arent having some quarantine-induced mental breakdown: Both cases involve the same defendant. Finally, the court denied review in Avery v. United States, 19-633, involving a similarly atextual rule. Section 2244(b)(1) of Title 28 creates a rule covering applications by state prisoners for habeas relief under 28 U.S.C. 2254. Yet six courts of appeals have interpreted the statute to cover applications filed not just by state prisoners under Section 2254, but also by federal prisoners under Section 2255, which the statute does not mention. Justice Brett Kavanaugh wrote an opinion respecting denial to emphasize that the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Governments favor, and essentially warned the Justice Department to start confessing error now, writing [i]n a future case, I would grant certiorari to resolve the circuit split.

There are three new relists this week, but the first two grow out of a single incident. There are a lot of moving parts in Brownback v. King, 19-546, and King v. Brownback, 19-718, so pay as much attention as your squalling children and blaring smoke detector permit. Douglas Brownback was an FBI special agent; Todd Allen was a detective with the Grand Rapids, Michigan, police department. Both worked for an FBI-directed fugitive task force. James King, who is of broadly the same height (within a five-inch range), build (thin) and age (within five years) as a known fugitive, had the misfortune to buy a soda from a particular gas station during the same two-hour period when the fugitive usually did so. Brownback and Allen, wearing plain clothes but with badges on lanyards, stopped King and had him put his hands on his head. They removed a pocketknife from his pocket, but when they also removed his wallet, King asked, Are you mugging me? and began running. What apparently followed was some tackling (of King), some biting (by King), and a whole lot of punching (by a bitten Allen). Michigan charged King with assault with intent to do great bodily harm, aggravated assault of a police officer and resisting arrest, but a jury acquitted him.

King then sued the United States under the Federal Tort Claims Act, which is a limited waiver of sovereign immunity allowing claimants to sue the federal government for negligent or wrongful act[s] or omission[s] if a private person would have been liable under those circumstances under state law. King also sued the federal government for constitutional violations on individual-capacity claims against the agents under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and under 42 U.S.C. 1983. The district court entered judgment for the federal government on the FTCA claims because the actions were taken within the scope of the agents authority in good faith, denied the Section 1983 claims on the ground that the statute applies only to state officials and the FBI was running the show here (even for the state agents), and denied the Bivens claim on the merits on the ground that the police had not violated Kings constitutional rights.

King did not appeal his FTCA claims only his Bivens and Section 1983 claims against the individual officers. The officers argued (through their government lawyers) that the claims were barred by the acts judgment bar, which provides that the judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim. A majority of the U.S. Court of Appeals for the 6th Circuit concluded that because King had not adequately pleaded all the elements of an FTCA claim in district court, that court never had jurisdiction over the claim, and, as a non-merits disposition, the district courts decision did not trigger the judgment bar. The majority then concluded that the claim was properly brought under Bivens and not Section 1983 because the conduct was fairly attributable to the FBI and not the state of Michigan. The court also determined that the officers were not entitled to qualified immunity under Bivens. Judge John Rogers (who apparently ties judge Jeffrey Sutton as the 6th Circuits most prolific judge) dissented on the grounds that the Bivens claims were precluded by the FTCAs judgment bar.

Are you still here? I guess people really are hard-up for entertainment during the quarantine. In any event, the federal government sought review, and King filed a conditional cross-petition. The government argues that the final judgment in favor of the United States under the FTCA should bar the Bivens claims. King argues that Allens membership in a joint state-federal task force does not preclude him from acting under color of state law for purposes of being liable under Section1983.

The third relist requires way less wind-up. Priscilla Daydee Valdez put an acquaintance in Mexico in touch with someone she knew in Tucson, Arizona, to buy ammunition. Valdez transferred money between the two and then traveled to the store, where her Tucson acquaintance bought 10,000 rounds of ammunition in a transaction Im confident the clerk thought was completely above-board. They then drove to a spot near the Mexican border and left the car for a time, returning to an empty car after receiving a call that the car was ready. Valdez pleaded guilty to charges of attempting to export ammunition, which included a forfeiture count. Although the relevant firearm statute, 18 U.S.C. 924, provides only for forfeiture of ammunition used in a federal offense, other statutes, namely 21 U.S.C. 853(a) and 2461(c), provide for the forfeiture of any other property of the defendant if, as a result of any act or omission of the defendant, the forfeitable property is unavailable. The district court ordered Valdez, who is indigent, to forfeit money of her own because the forfeitable ammunition had disappeared, and the U.S. Court of Appeals for the 9th Circuit affirmed.

Valdez seeks review, arguing that the government can require her to forfeit substitute property only if the original forfeitable property was also hers, and the ammunition here was not. If we have learned anything from the relists and opinions in Davis and Avery, and for that matter the relist in Brownback, its that the justices take the wording of provisions seriously. Theyre undoubtedly taking a very close look at the forfeiture statutes here.

Thats all this week. Everyone enjoy your family time!

New Relists

Brownback v. King, 19-546

Issue: Whether a final judgment in favor of the United States in an action brought underSection 1346(b)(1)of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim underBivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsthat is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimants FTCA claim.

(relisted after the March 20 conference)

King v. Brownback, 19-718

Issue: Whether a law enforcement officers membership in a joint state-federal police task force managed, in part, by a federal agency precludes him or her from acting under color of state law for purposes of 42 U.S.C. 1983.

(relisted after the March 20 conference)

Valdez v. United States, 19-6062

Issues: (1) Whether a defendant may be required to forfeit substitute property in lieu of the firearms and ammunition subject to forfeiture under18 U.S.C. 924(d); and (2) whether, if the substitute-asset provision of21 U.S.C. 853(p)is applied to a forfeiture imposed under any statute via28 U.S.C. 2461, the limitations of 21 U.S.C. 853(a)which are explicitly incorporated by Section 853(p)must be applied as well; in other words, whether, if substitute-asset forfeiture is imposed via 28 U.S.C. 2461(c), it is limited to situations in which a defendant transfers or conceals her own property.

(relisted after the March 20 conference)

Returning Relists

Andrus v. Texas, 18-9674

Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced inStrickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated no prejudice analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsels ineffective representation.

(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6 and March 20 conferences)

Cannon v. Seay, 19-311

Issues: (1) Whether, in review of a state decision under28 U.S.C. 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendants objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial courts fact-finding; and (2) whether, in granting relief under 28 U.S.C. 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court inArizona v. Washingtonand accord deference to the state courts ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the courts oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the states mistrial motion.

(relisted after the January 10, January 17, January 24, February 21, February 28, March 6 and March 20 conferences)

The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672

Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.

(relisted after the January 24 January 24, February 21, February 28, March 6 and March 20 conferences)

VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446

Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.

(relisted after the February 21, February 28, March 6 and March 20 conferences)

Halprin v. Davis, 19-6156

Issue: Whether Randy Halprins second federal petition raising a judicial bias claim is second or successive under28 U.S.C. 2244(b)(2)if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprins initial habeas proceedings in the district court created Halprins first fair opportunity to present his claim.

(relisted after the February 21, February 28, March 6 and March 20 conferences)

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455

Issues: (1) Whether the Washington Metropolitan Transit Authoritys policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.

(relisted after the March 6 and March 20 conferences)

United States v. California, 19-532

Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.

(relisted after the March 6 and March 20 conferences)

Posted in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, U.S. v. California, Brownback v. King, Andrus v. Texas, King v. Brownback, Cannon v. Seay, The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, VF Jeanswear LP v. Equal Employment Opportunity Commission, Halprin v. Davis, Valdez v. U.S., Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch: 100 years of solitude, SCOTUSblog (Mar. 25, 2020, 1:41 PM), https://www.scotusblog.com/2020/03/relist-watch-100-years-of-solitude/

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Relist Watch: 100 years of solitude - SCOTUSblog

President Trump is a ratings hit, and some journalists and public health experts say that could be a dangerous thing.

Since reviving the daily White House briefing a practice abandoned last year by an administration that bristles at outside scrutiny Mr. Trump and his coronavirus updates have attracted an average audience of 8.5 million on cable news, roughly the viewership of the season finale of TheBachelor.

And the numbers are continuing to rise, driven by intense concern about the virus and the housebound status of millions of Americans who are practicing social distancing. On Monday, nearly 12.2 million people watched Mr. Trumps briefing on CNN, Fox News and MSNBC, according to Nielsen Monday Night Football numbers.

Millions more are watching on ABC, CBS, NBC and online streaming sites. (Because of the way Nielsen ratings are measured, reliable numbers are available only for cable news.) And the audience is expanding even as Mr. Trump has repeatedly delivered information that doctors and public health officials have called ill informed, misleading or downright wrong.

The president has suggested that the coronavirus is comparable to influenza, which is far less lethal, and has invoked the death toll of car accidents. He has also encouraged the use of medications that have yet to be proved effective against the virus; on Monday, a man in Arizona died after he and his wife consumed a form of chloroquine, a drug that Mr. Trump has promoted on the air.

How to report on Mr. Trumps fabrications has long been a source of concern among journalists and press critics, dating to the blanket cable news coverage of his rallies in the 2016 presidential campaign. Even after Mr. Trump took office, journalists have debated the civic benefits of broadcasting the presidents remarks to the nation with the need to supplement his statements with corrections and context.

The emergence of the pandemic has raised the stakes for what had existed mostly as an insular discussion among media ethicists. Now, the presidents critics say, lives are at risk.

I would stop putting those briefings on live TV not out of spite, but because its misinformation, the MSNBC host Rachel Maddow declared to her viewers last week.

The veteran anchor Ted Koppel said on Wednesday that television news executives had forgotten a crucial distinction of their profession.

Training a camera on a live event, and just letting it play out, is technology, not journalism; journalism requires editing and context, Mr. Koppel wrote in an email. I recognize that presidential utterances occupy a unique category. Within that category, however, President Trump has created a special compartment all his own.

The question, clearly, is whether his status as president of the United States obliges us to broadcast his every briefing live, Mr. Koppel continued. No. No more so than you at The Times should be obliged to provide your readers with a daily, verbatim account.

Network producers and correspondents say there is often some internal debate about whether to carry the presidents appearances live and unfiltered. But given the intensity of the national crisis, many executives have concluded there is no justification for preventing Americans from hearing directly from the president and his health care administrators.

And a significant portion of the country is looking to Mr. Trump for its facts. A CBS News poll on Tuesday said that 90 percent of Republicans trusted Mr. Trump for accurate information about the pandemic; 14 percent of Democrats said the same.

Fox News has been a particularly popular venue for those who want to hear from the president. The network regularly accounts for roughly half the overall cable news audience for Mr. Trumps briefings.

On Monday, Fox News alone attracted 6.2 million viewers for the presidents briefing an astounding number for a 6 p.m. cable broadcast, more akin to the viewership for a popular prime-time sitcom. This past weekend, Fox News recorded its highest weekend viewership since its 2003 coverage of the gulf war.

Americans trust in the news media is also split along partisan lines. The CBS News poll said 13 percent of Republicans trusted the news media for information about the virus, versus 72 percent of Democrats.

Mr. Trumps hostility toward the independent press has done much to deepen that divide, and he has not hesitated to use the pandemic briefings an ostensibly nonpartisan venue to amplify his attacks.

Last week, the president denounced journalists as angry, angry people and berated the NBC News correspondent Peter Alexander as a terrible reporter, after Mr. Alexander asked the president to provide a message for concerned Americans. The Trump campaign later raised funds with an email highlighting Mr. Trumps insult.

One of Mr. Alexanders colleagues at NBC News had died from the coronavirus a day earlier.

Mr. Trump has also used national TV appearances to spread incendiary and unproven accusations. At a Fox News town hall on Tuesday, he read aloud a critical headline about Gov. Andrew M. Cuomo of New York that had been published by a fringe right-wing conspiracy theory site, The Gateway Pundit.

Mr. Trumps attacks on journalists have prompted outrage from First Amendment groups. The chief executive of PEN America, Suzanne Nossel, called Mr. Trumps remarks at the briefings an appalling daily spectacle and an international embarrassment.

The White House, in turn, has been critical of TV networks that do not do its bidding. On Monday, after CNN and MSNBC cut away from the final portion of Mr. Trumps briefing, a White House spokesman, Judd Deere, called the move pretty disgraceful.

CNN responded that the network will make our own editorial decisions. MSNBC said it had cut away only because the information no longer appeared to be valuable to the important ongoing discussion around public health.

John Koblin contributed reporting.

Read more from the original source:
Trumps Coronavirus Briefings Are a Ratings Hit. Should Networks Cover Them? - The New York Times

A judge allows a limited lawsuit from PEN America.

A New York federal judge on Tuesday ruled that PEN America may proceed on some of its claims against Donald Trump. Specifically, the U.S. president must continue to face allegations of violating the First Amendment by revoking press badges and security clearances.

Pen America is a literary organization that fights to protect free speech. The group sued Trump in October 2018 for using his power to punish and intimidate The Washington Post, CNN, NBC, the White House press corps and others who cover his administration.

Trump, in reaction to the lawsuit, moved to dismiss with the argument that PEN lacks standing to sue because none of its members have been injured (except for CNN's White House correspondent Jim Acosta, whose pass was reinstated after being revoked), that it failed to state a plausible claim and that the court lacks the power to control the official, discretionary actions of a sitting president.

U.S. District Court Judge Lorna Schofield rules Tuesday that PEN does have standing for at least some of the claims revocation of press badges and security clearances and can "establish a causal connection between the injuries and the challenged conduct."

Here's the full opinion.

The judge says the plaintiff may proceed in an attempt to get a declaratory ruling that President Trump is violating the First Amendment. PEN, however, won't be able to obtain an injunction.

"The Complaint explicitly pleads, quoting from the Press Secretarys e-mail, that [Trump] and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps," states the opinion.

This decision comes merely a day after the D.C. Circuit Court of Appeals considered whether a lower judge was correct to order President Trump to restore the press badge of Playboy's White House correspondent Brian Karem. PEN's dispute could provide some legal clarity beyond that singular situation.

However, PEN won't get to challenge some of Trump's other conduct allegedly flouting the First Amendment.

Schofield writes the literary group does not have associational standing to bring a suit over Trump's threats to revoke broadcast licenses, the Department of Justice's challenge to the AT&T-Time Warner merger and regulatory threats to internet companies among other things.

PEN America CEO Suzanne Nossel commented about the judge's decision: "Its hard to think of a moment in American history in which unvarnished, accurate news reporting has mattered more than it does now. This decision is a victory not just for PEN America and our own writers, but also for the journalists and media outlets doing the vital, risky work of keeping us all informed. But above all, it is a win for all individuals who depend on a free press to dig out the facts and hold leadership accountable without fear of reprisal. We sued the president because we believe the First Amendment prohibits him from retaliating against speech he dislikes. We are grateful that this essential suit can move forward, vindicating the rights of all those who rely on a free press."

Continued here:
Donald Trump Must Face First Amendment Suit for Revoking Press Badges - Hollywood Reporter

Warder Cresson was well strange. He was also the first American consul to Jerusalem. Seized with the evangelical fervor of the age, Cresson was convinced that the Second Coming was nigh, to come in 1847 to be precise. And Warder Cresson meant to claim a front-row seat.

Cressons main qualification for the job of counsul-general was his messianic zeal and his connection to then-Secretary of State John Clahoun, who prevailed upon President John Tyler to appoint him.

Cresson and his contingent arrived in the Holy Land with drooling passion along with great pompt and fanfare.Almost at once, he announced to the ruling pasha that he had come to witness the apocalypse.Dipolmats shortly informed the president that his delegate to Jerusalem was a religious maniac and madman.

By design, the United States Constitution takes a hands-off approach to religion. The operative part of the First Amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof In time, in his own sort of thrashing way, Warder Cresson would test that most fundamental precept of the Constitution.

Born to a well-to-do Quaker family, before arriving in Jerusalem, Cresson had spent two decades trying on the coats of half-a-dozen different apocalyptic cults, along the way abandoning his wife and six children.At different times, he had been a Shaker, a Millerite, a Mormon and a Campbellite before, at last, he became convinced that return of the Jews to Jerusalem would assure the second coming. Cresson adopted this literally as an article of faith.His faith, though flighty, was deep, abiding and maniacally sincere.

Ultimately the president tired of Cressons schtick and relieved him of his duties.But that did little, if anything, to deter Cresson. For several years, he continued to issue visas for the protection of Jews, converted to Judaism and changed his name to Michael Boaz Israel (or, more formally, Michoel Boaz Yisroel ben Avraham).

This was too much for his beleaguered wife.

Elizabeth Townsend Warder sued to have her wayward husband declared insane.

The peripatetic Warder Cresson-cum-Michael Boaz Israel jumped on a boat and sailed back from the Holy Land to Philadelphia to answer to the inquisition of lunacy which soon took on the buzz of the O.J. Simpson trial of its time.

What was at stake in an admittedly roundabout way was the precept of religious freedom.What the long-suffering Mrs. Cresson was testing was the constitutional right of an American citizen to believe whatever he or she desired.Hers was a frontal assault on the First Amendment.Could Warder-cum-Michael slake his religious fervor with what Mrs. Cresson believed was any cockamamie thought that flitted through what was surely his deluded brain?Wouldnt her success in doing so stomp on the very essence of Jeffersonian liberty?

At the trial, Warder Cresson was found to be insane.

But that was not the end of it.

He appealed and a retrial was ordered.

In the second legal bout, which went on for six days and entailed nearly 100 witnesses, the woebegone Mrs. Cresson lost.Warder/Michael, the court ruled, whoever the heck he wanted to be, could be, think, or believe any religious thing he wanted.There was no restraint on thought or the pursuit of religious satisfaction.

Cresson returned, triumphant, to Jerusalem.He established a model Jewish farm, studied the Torah, divorced his wife and remarried a woman who was more aligned with the religious paroxysms that dominated his actions and his thoughts, and fathered three more children.

What the strange case of Warder Cresson affirmed was that the First Amendment meant what it said; that there could be no state-aided constraint on the exercise of ones religious convictions, however odd, or like the rebounding of a Pachinko ball it may appear to others.Every citizen was entitled to accord with his/her beliefs and conscience. The state would not and could not aid or abet one set of beliefs or systems to be superior to any other.

Law, like God, at times works in mysterious ways.What often seems at first blush like a plain vanilla dispute between two parties take the domestic woes between Mrs. Cresson and her errant husband (or Rosa Parks refusing to give up her bus seat, or Earl Gideon establishing the Sixth Amendments right to counsel, or Ernesto Miranda affirming an accused Fifth Amendment right against self-incrimination) can ripple out and have repercussions far beyond the nut of the initial dispute.In fact, at law at least, that is more the norm than the exception.It is the rare case where a party expressly sets out to make or challenge the law.

More often, what starts out as a private dispute swells with importance. Such then was the strange case of Warder Cresson who became a respected member of his adopted community and is buried on the Mount of Olives within easy view of the Old City of his beloved Jerusalem.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.

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Robbins: Freedom of worship and the strange case of Warder Cresson - Vail Daily News

This is a nuts and bolts column regarding significant legal anti-BDS efforts, and the underlying tactics employed. Given the ubiquity of new laws aimed at stifling BDS efforts its important to understand the machinary employed in order to effectively respond. The good news is that civil rights groups like Palestine Legal and the ACLU have been working non-stop to counter these efforts. In further service to coherently understanding the legal context for such anti-BDS efforts, I will be unpacking arguments in the Harvard Law Review note examining this issue.

Stopping BDS efforts has become a major thrust of the Israeli government and US actors who correctly recognize BDS as a serious non-violent tactic for effecting Israeli governmental change towards occupied Palestinians (beyond the green line) as well as inside Israel, proper. Over the last few years, these efforts have accelerated and become more organized with, at this date, 28 US states having some sort of anti-BDS legislation on the books, and 14 more states attempting to pass legislation. There are also myriad smaller scale efforts as well as federal level efforts, that, while important, I will leave for future columns. What I want to do here is unpack the general outline of the legal strategy typically used by anti-BDS forces.

Although the in the weeds legal details dont matter, its important to understand the general approach in order to develop a more coherent understanding of the forces arrayed against BDS efforts. I will be using the recent and very thorough Harvard Law Review note (HLRn) that does a deep dive into the machinations of the legal theories involved. For our purposes, the two necessary things to understand concern the First and Fourteenth Amendments (Free speech and discrimination, respectively). These amendments map very well onto issues discussed here previously concerning the conflation of antisemitic behavior and language with criticism of the state of Israel.

To reduce anxiety, Ill give you the thumbnail first: its considered relatively settled law that BDS activity and language are protected by the First Amendment, and that discrimination claims have to reach a level that have, so far, and for the foreseeable future, not been achieved. Thus, the US supreme court would have to reverse established law based (obviously, this could happen given this supreme court) on what has been, heretofore, considered relatively weak merits. The civil rights movement in the US actually provides the strongest support for BDS efforts, as almost sacred SCOTUS decisions are providing the bedrock support for BDS.

Although BDS has been around since about 2005 as a consequence of Palestinian civil society calls to non-violently oppose the Israeli occupation, support refugee rights, and advocate for equal rights for Palestinian citizens of Israel, anti-BDS legislative efforts have only been around since around 2014 when Illinois was the first state to pass laws. Israel, in 2014, budgeted about $25 million dollars to establish an anti-BDS task force focused on the US. Thus, its pretty clear there has been a well-coordinated and funded effort that was quickly ramped up. Hoping to overcome first amendment issues, the gist of the anti-BDS legal argument is that BDS is targeting a particular group by inflicting economic harm, thus discrimination. Antisemitism is claimed by charging that BDS trades in antisemitic stereotypes and singles out the worlds only Jewish (democratic) state while ignoring state human rights abuses in other countries (the standard whataboutism tactic). Further, there is an attempt to link age-old exclusions of Jewish people from commerce to BDS as the latest version of economic warfare against Jewish people. The charge of antisemitism against almost any criticism of Israel or support of Palestinian rights has not really changed, its the main go-to tactic and, particularly in Europe, has been effective.

The legalization of this tactic is, however, new and Ill be drilling down a bit on why this matters. The main approach by anti-BDS forces is to employ some version of the anti-discrimination rationale often seeking to penalize activity that discriminates on the basis of religion, national origin and nationality. In addition to these contracting laws, many states have passed resolutions equating BDS as a way to spread antisemitism. These are often paired together to defensively counter obvious First Amendment challenges. The general class of these claims centers on the notion that BDS is discrimination, pure and simple, and the state has the power to prohibit such activity and that these issues of discrimination overcome First Amendment rights. In some instances, such as the Airbnb controversy, the claim was made that Airbnb was discriminating against Jewish Airbnb rentals in the West Bank. This politically and culturally head spinning/guffaw-inducing claim, easy enough to dismiss in most worlds, save the world of law, was enough to force Airbnb to retract its ban on such rentals.

The through-line here is to conflate antisemitism with anti-Zionism to such an extent that they are rendered, effectively, synonymous which then, allows for the relatively simple discriminatory claim of antisemitism to be made in almost all cases. The table was set for this by a 2010 US state department adoption of antisemitism that includes the 3 Ds demonization, delegitimizing and double-standards (read: we like whataboutism). The legal gravitas here centers on the transforming of ideology into something legally actionable (the legal term is cognizable).

We could easily, at this point, go down the rabbit hole of legalese and constitutional law we wont, but suffice it to say, its head spinning and the HLR note does an amazing job trying to keep it somewhat jargon free. For our purposes, its important to understand that the bulk of established law supports free expression against general discrimination claims, but that obvious discrimination cannot hide behind free expression. Thus, a white supremacist group organizing a boycott of black businesses could be considered illegal by the state. More concretely, Obama passed an executive law in 2014 prohibiting federal contractors from practicing anti-LGBT employment discrimination. This is similar to the claims now being made bythose arguing for anti-BDS legislation.

But lets not despair because almost all the laws developed to date are fairly weak constitutionally. Indeed, these are very specific laws that only apply to boycotts against Israel, this underinclusiveness speaks to the fact that no other boycotts of any kind in the US are protected with these anti-BDS laws. Its pretty clear that such laws are being developed to stifle/quash (in legal terms, disfavor) a particular viewpoint, directed at a specific country, Israel. To be clear, its more than fine to have boycotts against any other country, any US state or the US itself (if this were possible), but apparently not Israel.

Anti-BDS forces try to make the case that direct evidence exists that BDS discriminates against Israeli individuals or Jewish individuals, per se, just because of their status but this claim could not be further from the truth. Indeed, the Palestinian BDS national committee directly states that they do not tolerate any act or discourse which adopts or promotes. . . antisemitism, and it affirms Universal Declaration of Human Rights principles rejecting religious and national-origin discrimination. The Palestinian Boycott National Committee encourages supporters to select targets based on their complicity in Israels human rights violations, potential for cross-movement solidarity, media appeal, and likelihood of success. The movement does not select targets based on their national origin or religious identity.

There is a judo throw trick that anti-BDS forces also use in which they claim that criticism of the Jewish state or advocating the end of Israel as a Jewish state are direct evidence for antisemitism. Although this stance can be construed or directly stated as being anti-Zionist (a political stance that opposes Jewish ethno-Nationalism in Israel), it certainly isnt, by definition, equal to being antisemitic, (anti-Jewish animus).

Similarly, anti-BDS forces also argue that BDS ignores human rights abuses in other countries, and then uses but-for rhetoric, in the shape of but-for Israel being the Jewish state, or but-for Jews controlling political power in Israel, there would be no BDS movement. Analogously, claims that the US refusing to trade with Iran are based on anti-Shia Muslim animus instead of Iranian nation-state policy, would be considered idle. And the but-for argument immediately founders if we imagine a similar argument being made against BDS efforts in apartheid South Africa, but-for animus towards the Dutch Boer, there would be no BDS against South Africa.

In another attempted judo throw, anti-BDS tactics may involve claiming that BDS disproportionally affects Jewish Israelis, no matter the intent of BDS. But this runs up against settled case law, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982),in which the claim that the local whites were more likely to be employed by the boycotted businesses, constituting discrimination against white (I kid you not), was rejected. Indeed, the point of the boycott was that whites were the only ones allowed to work and eat in these establishments due to racism. Similarly, BDS, if it has disproportionate effects on Israeli Jews is because the self-proclaimed Jewish State implements a policy of Jewish-only illegal settlements in the West Bank.

The bottom line is that anti-BDS efforts, in a legal context can easily be seen as an effort to stifle disfavored speech (with BDS considered a type of protected speech), precisely what the First Amendment is designed to protect. Attempts to use anti-discrimination argumentation is dependent on the cynical conflation of critique of Israels policies with antisemitic racism. Although there are some critics of Israel that may also be antisemitic, BDS has clearly stated its rejection of any kind of racist language or behavior. Attempts by anti-BDS forces to pass laws legislating against free speech, while successful in regard to getting onto the books in a majority of US states will most likely be rejected when constitutionally challenged. Palestine Legal has as its mission challenging these laws in court and I would urge people to see what they are doing here.

Pulling this back out of the legal context clearly these anti-BDS efforts can have a chilling effect on non-violent efforts to challenge Israels US-supported illegal occupation. The welter of local, state, and national laws and resolutions requires great commitment to fight against. This should not be surprising given the threat BDS poses to the status quo settler colonialism practiced by Israel.

See here for the MuzzleWatch archive. Have tips or feedback? Let us know [emailprotected].

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MuzzleWatch: Breaking down the legal attack against the BDS movement - Mondoweiss

An executive order by Arizona's governor makes it harder for mayors, cities, and towns to close parks, essentials or mandate stay at home orders without going through the state.

The order uses words like "shall be consistent with advice from Arizona Department of Health Services" and "restrictions shall be coordinated with the state."

The governor's executive order also lays out what's considered essential if a stay at home order is placed in Arizona. The list is pages long with everything from bakers, to golf courses, and pawn brokers.

A first amendment attorney, Dan Barr, says the executive order is clear - "the governor has said pretty clearly that he has the sole power."

Barr describes the words "consistent" and "coordinate" in the executive order as "weasel words."

"If hes going to take such authority, he should come forward and say, 'Yeah I'm taking the exclusive authority,'" he said. "He should come out and say, 'Yes, I'm taking exclusive power and the responsibility for issuing such orders lies with me and me alone.'"

ABC15 has highlighted parks are packed with people despite a call for social distancing. If Phoenix's mayor and city council wanted to put a closure to parks to slow the spread of COVID-19, they would have to go to the governor first.

"I am concerned this is not sustainable," said Mayor Kate Gallego. "The idea that we would have to check with the governor before implementing safety measures at any of the incredibly broad number of essential services seems unworkable."

Phoenix is the nation's fifth largest city that has the largest population in Arizona.

Gallego tells ABC15 she understands the governor's interest in having consistency across the state of Arizona, "but my message is we can't stop cities from making decisions throughout COVID-19."

Last week, the governor made it clear that he wants cities and counties to make decisions at a local level when implementing closures -- like bars, and restaurants.

Flagstaff, Phoenix and Tucson all used their authorities to mandate the closures of bars and restaurants, days before a state-wide mandate.

On Tuesday, a day after the governor's executive order, Tucson made a move requesting the governor issue a "remain in place" order.

In Tucson, Mayor Regina Romero, posted to social media that the city council unanimously approved a motion encouraging Governor Ducey to take action at the statewide level to issue a "remain in place."

The governor said in a Monday press conference that his order is for clarity.

"This is a proactive and administrative measure that ensures the state has one consistent, overarching policy," said Ducey.

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Coronavirus in Arizona: Mayors, cities can't close parks, essentials without going through Governor Ducey - ABC15 Arizona

Just under three years after leaving my role as White House press secretary, I returned to the White Houses James Brady briefing room for the coronavirus task force briefing on Friday this time, on the other side of the podium.

It was an adjustment being on the other side of the room, but I was there to ask the president two questions that were relevant to the topics I was covering that day on my daily show on Newsmax TV. Being able to get a response directly from the president would provide an answer from our countrys leader to viewersworried about their health and their next paycheck or concerned businesses owners on the brink of collapse and laying off employees.

More than 20 questions into what ended up being more than an hour-and-a-half briefing, President TrumpDonald John TrumpThe pandemic is bad, we need the capability to measure just how bad Florida governor wants federal disaster area declaration Amash calls stimulus package 'a raw deal' for 'those who need the most help' MORE called on me. I stood up from the seat assigned to Newsmax in the back row and asked one question regarding whether the relief being planned for small businesses would be timelyenough, and then another question regarding reports that members of Congress used private briefing information about the emerging coronavirus threat to sell stocks. The latter was arguably one of the most pressing news stories of the day, while the former addressed a concern held by millions of working Americans that much of the assistance being suggested for small businesses is scheduled to take months and they have only a few weeks of viability.

Interestingly, neither question came up before I raised them.We had a guest scheduled on our program that evening from the Small Business Administration, and being able have him respond directly to the presidents comments would provide critical insight to the actual capabilities of the SBA to handle the demand for assistance from small businesses around the country.

My questions unlike politically fueled questions, many of those more like statements, coming from some reporters in the room were clearly nonpartisan and straightforward, designed to give answers to Americans on two topical issues.

Nevertheless, outrage from some in the media ensued.NBC White House correspondent Kelly ODonnell declared that it was simply not appropriate for me to be there. While I disagree, I give her credit for being one of the only reporters to put her name on the record regarding her criticism. Hiding behind anonymity, a columnist at one website wrotethat I shouldn't be allowed anywhere near a White House briefing room again. Ironically, the same outlet published astorythe same day based on my question about stock dumps the question that no other reporter asked.

One news account of the briefing anonymously quoted not one but three White House correspondents who didnt refute the validity of my questions and instead weighed in on my presence. One claimed that Spicer has a long way to go before he has the confidence of the rest of the White House press corps. To be clear, I wasn't there to gain the confidence or approval of the press corps. I am not, nor do I aspire to be, a journalist or a reporter I host a TV news show, thats it.

Beyond the irony of an entire story being published using the sort of background quotes that most journalists claim to detest, the article showed that some members of the press corps are selective or hypocritical with their outrage over who attends White House briefings.

When I was White House press secretary, I made a point to credential anybody from a bona fide news organization. My idea was not to judge based on some arbitrary or ideological bar but to be as open as possible in order to provide access to the widest group of news outlets and to provide the public as much information and range as they sought.I credentialed everyone, from documentary film crews and radio hosts to bloggers, columnists, historians, academics and independent journalists. I also enhanced access to the briefings by bringing in local TV and print reporters, as well as radio hosts, using Skype.

Whats most revealing here is that some in the media appear to they think they should be the ones to decide who gets access to the briefing room and where to draw the line. It's not lost on me that my efforts to increase access are now opposed by some members of the very group the press corps that supposedly fights for greater media access.

At a time when America is fighting a worldwide pandemic andlives are at risk, the medias fixation on my attendance at a press briefing begs the question: What are they really worried about?Whether or not you like me or my political ideology, the same First Amendment that protects the media also gives me and every other American the right to express themselves.

Sean M. Spicer is the host of Newsmax TVs political talk show, "Spicer & Co." He previously served as the 28th White House press secretary.He can be reached atwww.seanspicer.com.

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Misplaced outrage over who attends a White House press conference | TheHill - The Hill

The U.S. Court of Appeals for the 2nd Circuit denied the White Houses request for en banc review of a ruling that Donald Trump violated the First Amendment by blocking critics of the president on .

The Trump administration had appealed for a review of the unanimous three-judge ruling by the 2nd Circuit in July 2019 finding that Trumps @realDonaldTrump Twitter account constitutes a public forum under the U.S. Constitutions First Amendment.

That upheld a 2018 U.S. District Court judges ruling that Trumps blocking of individual accounts on Twitter was unconstitutional, rejecting the argument from the presidents lawyers that Trumps own First Amendment rights would be abridged if he was disallowed from blocking users. The district court ordered Trump to unblock the plaintiffs accounts on Twitter, and barred him from blocking speakers on the basis of political views.

Regarding the 2nd Circuits rejection Monday of the request for a rehearing, two dissenting circuit court judges contended that Trumps use of his personal @realDonaldTrump to conduct official business does not amount to state action. But U.S. Circuit Judge Barrington D. Parker, in a statement, wrote that This argument is refuted by even a cursory perusal of examples of the tweets in question.

Parker cited Trump posts on Twitter in January 2020 about Iran as illustrating the fact that @realDonaldTrump is used as an official communications channel. These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner. Such legal notice is not required, but is given nevertheless! Trump tweeted from his personal account on Jan. 5.

The dissenting opinion misconstrues the applicable law and overstates the scope of the panels holding, Parker wrote in part. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.

The lawsuit against Trump was filed in 2017 by Columbia Universitys Knight First Amendment Institute and seven individuals who said Trump blocked them from the @realDonaldTrump account after they criticized him in comments.

Were pleased that the full appeals court will leave the panels original ruling in place, Jameel Jaffer, the Knight Institutes executive director, who argued the case before the 2nd Circuit, said in a statement. The ruling is an important affirmation of core First Amendment principles as applied to new communications technology.

The 2nd Circuits order denying the Trump administrations en banc petition is at this link.

The lawsuit also named White House social-media director Daniel Scavino and former Trump press secretary Sarah Huckabee Sanders as defendants.

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Donald Trump Violated First Amendment by Blocking Critics on Twitter, Appeals Court Affirms - Variety

Its fair to say that the average Indians faith in the judiciary and the Constitution in general is at an all-time low. A few days ago, we learned that former Chief Justice of India, Ranjan Gogoi, will be a Rajya Sabha MP soon. This is less than a year after he presided over his own sexual harassment allegation hearing just one of the many unpopular decisions he took in the last year of his career, all of which favoured the Narendra Modi government (Ayodhya, the Rafale deal and so on). The most contentious issue in India (other than the governments handling of COVID-19, of course) today, after all, is an act that many of us feel is unconstitutional (violates Article 14, for starters) and yet, the fight against the CAA is led by street protests, not legal challenges.

When did the executive branch begin to bend the judiciary to their (political) will in India and how? Sixteen Stormy Days (Penguin Random House India), a new non-fiction book by Tripurdaman Singh, tries to answer this question and address the long-term effects of the First Amendment to the Indian constitution.

Sixteen Stormy Days, by Tripurdaman Singh

As the author says, How did this magnificent Constitution, the most elaborate declaration of human rights yet framed go from being a charter of freedom & fulfillment of the dreams of Indias people in 1950 to being an impediment in the will of the same people by 1951?

Why did Jawaharlal Nehru push so hard for the First Amendment in 1951, especially in the face of challenges both within the provisional parliament (general elections were still a few months away) and from various High Courts? The answer is both simple and not. The objective was three-fold: the abolition of the zamindari system (the impediment being the right to property), the application of caste-based reservations (the impediment being the right to equality) and the censoring of publications deemed as national security threats (the impediment being freedom of speech).

Each of the three objectives, therefore, involved a clash between political objectives and fundamental rights. This brought Nehru back to the original question: why do we have fundamental rights in the first place? Is it not to protect the most vulnerable among us? Nehru was certainly correct in his over-arching view of things that as long as structural inequities existed in the Indian state (the caste system, for instance, something that persists to this day and is easily Indias biggest social justice issue), fundamental rights could be misused to privilege the powerful over the weak. Zamindari did need to go, caste-based reservations were needed in India (still are).

As part of its agenda, the Congress wanted to abolish the zamindari system as soon as possible. Obviously, faced with the overnight evaporation of their power, the zamindars of Bihar in particular fought back hard, helped by allies like Rajendra Prasad, Indias first President. On 12 March 1951, the Patna High Court struck down the Bihar Land Reforms Act, saying that it violated Article 14 of the Constitution (which pertains to the equality of all citizens in the eyes of the law).

In a searing indictment of the Congress party and the Bihar governments manifest authoritarianism, the judges denounced the Act as an unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away. The courts decision shook the government and the Congress party to its core. It shattered the illusion of the current regime having inherited the absolute power of the Raj. The Bihar Land Reforms Act bit the dust. An entire pillar of the Congress partys social agenda stood virtually crippled.Singhs research is thorough. He excels in the blow-by-blow accounts of those crucial weeks when Nehru tried to bring his allies and his opponents around to his point of view. (Realpolitik is a thorny affair at the best of times, one that Singh is clearly familiar with). Immediately after the Patna High Court ruling, Nehru had a fairly strong-worded statement for the press:

If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.

Most students of history and/or political science will, I am sure, find the back-and-forth between Nehru and BR Ambedkar, or between Prasad and Nehru, compelling reading. This is among the reasons why Singhs work is such a valuable resource. To his credit, the book is also accessibly written, for the most part, only slipping into legalese at a few places every now and then small blemishes in an otherwise thoroughly professional job.

I was also impressed by the fact that Singh, despite his Bharatiya Janata Party affiliations (his father Mahendra Aridaman Singh re-joined the BJP in 2017; at various points through the 90s and 2000s, he had been a part of the Samajwadi Party and Janta Dal as well), isnt interested in painting Nehru as an outright villain (although predictably, his book has been gleefully reported on by right-wing publications with a history of Islamophobia and publishing falsehoods like Swarajya magazine, complete with headlines blasting Nehru). As the author himself pointed out in a recent interview, he saw Nehru as a hard-nosed politician (and not as the saboteur of fundamental rights in India, despite his stand here). Hopefully, this sense of nuance also reaches Singhs colleagues in the BJP soon.

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Sixteen Stormy Days: Tripurdaman Singh's account of the First Amendment to Indian Constitution makes for... - Firstpost